I received this question on tumblr yesterday.
And I realized, much to my dismay, that people really don’t understand this process. Here is my answer and I wanted to share it here as well, in the hopes that more people will understand this process.
And hopefully understand why this argument that “You shouldn’t vote for Romney or he will outright ban gay marriage, abortion, and birth control” is completely false, not just because he believes in state’s rights, but because that simply isn’t within his power.
Banning any of those things would be unconstitutional.
Now you may bring up DOMA here, but DOMA, while there is an argument about whether it is constitutional or not, was not a ban. DOMA basically meant that divorces and marriages did not have to be recognized across state lines, if a same-sex married couple moved from a state where their marriage was recognized to a state that did not have same-sex marriage.
So to ban something like that would take a constitutional amendment so that it wouldn’t be a unconstitutional. You following so far?
An amendment on one of those things would never happen. Here is why.
The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.
The amendment on those topics would never be proposed by 2/3s of the House and Senate or by 2/3s of the states.
And even if one was proposed, it wouldn’t be passed because:
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).
Do you really think 38 states would agree to such an amendment? Not likely.